Bird v. Bilby
| Decision Date | 10 November 1919 |
| Docket Number | No. 13314.,13314. |
| Citation | 202 Mo. App. 212,215 S.W. 909 |
| Parties | BIRD v. BILBY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.
Suit by Maud Bird against R. I. Bilby. Judgment for plaintiff, and defendant appeals. Affirmed.
Wright & Ford, of Maryville, for appellant. Cook & Cummins, of Maryville, for respondent.
This is a suit for damages for breach of an oral contract. Plaintiff's husband, William Bird, was foreman on one of defendant's ranches, and on September 21, 1910, was engaged in the digging of a ditch thereon. While so doing, the sides of the ditch caved in and killed him. He left his widow, the plaintiff and several minor children, the youngest of whom was six months old. Plaintiff intended and was about to bring a suit for damages against defendant oil the ground that her husband's death was caused by defendant's negligence. Defendant, knowing this, went to plaintiff some two weeks after her husband's death and proposed to her a settlement, offering and agreeing that, if she would not bring a suit or cause him any trouble, he would pay her $20 per month until her youngest child became 18 years of age, a period of 17½ years. He told her such an arrangement would be all right and it would be better for her to get the money in installments this way than to have all the money paid into her hands at once. After making certain that he would "always" pay it to her, that is, that he would pay during the aforesaid time whether the child lived or died, she accepted the offer, and they separated with the clear understanding and agreement that she would not bring her contemplated suit and he would pay her $20 monthly throughout the time above mentioned, a period of 210 months.
Defendant at once began paying her the monthly sums of $20, and continued to do so down to and including the month of February, 1914, a period of 41 months. In the meantime she had married her deceased husband's brother and moved to Minnesota, and defendant sent her the monthly checks for $20 while there and also for a time after their return from that state. Her husband finally went back to Minnesota, and, when she got ready to follow him, defendant refused to continue making the payments, unless, so she says, she would leave her husband, whom defendant considered worthless.
The defendant concedes that he paid her monthly payments down to February, 1914, but denies that there was any agreement between them or settlement of her cause of action, insisting that the payments he made were in the nature of a voluntary "pension" paid by him to help her because she was in need. He also concedes that he refused to continue the payments if she went back to her husband.
At the close of plaintiff's case and at the close of all the evidence, defendant demurred, but was overruled. The jury found a verdict for plaintiff, upon which judgment was rendered, and defendant has appealed.
The main contention is over the question whether the alleged agreement, upon which plaintiff grounds her suit, is within or without that clause of the statute of frauds forbidding an action upon any oral agreement "that is not to be performed within one year from the making thereof." Section 2783, R. S. 1009.
An oral contract which neither party can perform within the year is within the statute; and, even though full performance has been made by the complaining party after the expiration of said year, no action can be maintained on the contract. Defendant insists that the contract herein is of this character. He says plaintiff's agreement not to sue for the death of her husband could be fully performed only by refraining from suit throughout the full period of the general statute of limitations, which of course, is more than a year, and that therefore the contract is one which neither party could perform within the year. But plaintiff's cause of action for the death of her husband arose under sections 5426 and 5427, c. 38, R. S. 1909, and was therefore governed by the limitation contained in that chapter, which gives the widow, in case there are minor children, only six months in which to sue, and in no event could a suit be maintained by any one unless brought within a year after the cause of action accrued. Section 5429. Hence the contract in this case clearly contemplated that plaintiff's part thereof would be performed within the year from the date of such contract, which was two weeks subsequent to the date of her husband's death, and this last date was when her cause of action accrued. Manifestly, therefore, the contract herein is one which contemplated that the plaintiff should perform within the year and Which the plaintiff did perform in full before the expiration of that time.
Under these circumstances, the question arises: Does full performance by the plaintiff within the year take the case out of the statute and allow her to maintain the suit? This is a question on which the courts of the different jurisdictions do not entirely agree. The great majority of them, however, uphold the doctrine that in such case the statute does not apply. 29 Am. & Eng. Ency. of Law (2d Ed.) 835; 20 Cyc. 291. Such is the English rule, and is the one followed by most of the American states. See cases cited in support of the text in the above authorities, a few of which are: Donnelan v. Read, 3 B. & Add. 899, 110 English Reports, 330; Johnson v. Watson, 1 Ga. 348; MacDonald v. Crosby, 192 Ill. 283, 61 N. E. 505; Curtis v. Sage, 35 Ill. 22; Haugh v. Blythe's Ex'rs, 20 Ind. 24; Saum v. Saum, 49 Iowa, 704; Ellicott v. Turner, 4 Md. 476; McClellan v. Sanford, 26 Wis. 595; Washburn v. Dosch, 68 Wis. 436, 32 N. W. 60 Am. Rep. 873; Dant v. Head, 90 Ky. 255, 13 S. W. 1073, 29 Am. St. Rep. 369; Berry v. Doremus, 30 N. J. Law, 399; Langan v. Iverson, 78 Minn. 299, 80 N. W. 1051. See, also, City of Tyler v. Southwestern It. Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911. Some courts seem to require that, after full performance within the year by one parry, nothing more must remain to be done by' the other party except the payment of money. Whether this applies only to cases wherein such other party might, upon performance, have paid the money within the year, and not to cases where the money could not have been so paid, does not always seem to have been made clear. It may be well to note that in the contract now under consideration plaintiff fully performed within the year and nothing remained for defendant to do except to continue that which he had been doing from the making of the contract, namely, the payment of the installments at the time and throughout the period called for in the contract. But without regard to whether the rulings of some of the courts apply to one or both of the situations above referred to, it is certain that the great majority of them hold that where it is the intention of the parties that one of them should perform within the year, and such party has fully performed within that time, then the other party cannot escape even though he is not to perform, and cannot perform, within the year. A number of states, however, hold to the contrary doctrine, namely, that if the contract is not to be performed by one party within the year, recovery cannot be had against him by the other even though such other party has fully performed and has done so within the year. 29 Am. & Eng. Ency. of Law, 836; Frary v. Sterling, 99 Mass. 461; Dietrich v. Hoefelmeir, 128 Mich. 145, 87 N. W. 111; Broadwell v. Getman, 2 Denio (N. Y.) 87; Lockwood v. Barnes, 3 Hill (N. Y.) 128, 38 Am. Dec. 620; Pierce v. Paine's Estate, 28 Vt. 34. See, also, cases cited under Minority Rule in 13 Ann. Cas. 918.
In Blanton v. Knox, 3 Mo. 342, the Supreme Court of our state held that as the plaintiff's part of the contract was to be performed within the year, and was fully performed (by the delivery of a slave) within that time, the contract was taken out of the statute. The case of Pitcher v. Wilson, 5 Mo. 46, was where under the contract neither party could perform within the year, and, even though plaintiff had fully performed after the year, the court held he could not recover. Instead of overruling the case of Blanton v. Knox, the latter case was distinguished from the former and the decision in the Blanton Case has been followed in a long line of decisions thereafter. Suggett's Adm'r v. Cason's Adm'r, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; Winters v. Cherry, 78 Mo. 344; Smock v. Smock, 37 Mo. App. 56; Mitchell v. Branham, 104 Mo. App. 480, 79 S. W. 739; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Marks v. Davis, 72 Mo. App. 557; Moore v. McHaney, 191 Mo. App. 686, 697, 178 S. W. 258; Denny v. Brown (Sup.) 193 S. W. 552.
In the case of Johnson v. Reading, 36 Mo. App. 306, the contract related to the sale of a lease of real estate for a term of years and was also one not to be performed within a year. It was therefore one that was affected, not only by the branch of the statute of frauds now under consideration, but it violated two other branches of the statute, namely, the one relating to the creation of leases, etc., for a term of years (section 2782), and the one relating to the sale or assignment of such leases (section 2783). The facts in the case were that plaintiff had performed in part only, and, as this could take the case out of the statute only in equity, such part performance could not avail, as the case was one at law. The opinion did not hold that full performance by one party within the year would not entitle a recovery against the other party, but, on the contrary, said (page 315):
"It is fairly deducible from all cases decided in this state touching contracts falling within the various sections of the statute of frauds that where the contract has been fully performed, on one side, and the other party...
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